Wisconsin Legislature: Adm 24.01(1)(a)

Chapter Adm 24

DEBARMENT, SUSPENSION AND INELIGIBILITY OF DEPARTMENT
OF ADMINISTRATION CONTRACTORS

Adm 24.01 Scope and policy.

Adm 24.02 Definitions.

Adm 24.03 List and records of debarred and suspended contractors.

Adm 24.04 Treatment of listed contractors.

Adm 24.05 Debarment.

Adm 24.06 Suspension.

Adm 24.01 Scope and policy.

(1) Scope of chapter. This chapter:

(a) Prescribes certain policies and procedures governing the debarment and suspension of contractors from contracts pursuant to subch. V of ch. 16, Stats.

(b) Provides for the listing of suspended or debarred contractors and subcontractors, and of contractors declared ineligible for department engineering-related contracts.

(2) Policy.

(a) The department shall solicit bids from, award contracts to, and approve subcontracts with only responsible, qualified business entities and individuals. Debarment and suspension are appropriate means to effectuate this policy.

(b) Debarment and suspension are serious actions imposed to protect the public interest.

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.02 Definitions. In this chapter:

(1) “Adequate evidence” means information sufficient to support a reasonable belief that a particular act or omission has occurred.

(2) “Affiliate” means a business entity or individual having a relationship whereby one directly or indirectly controls or can control the other or whereby a third business entity or individual directly or indirectly controls or can control the subject business entity or individual.

(3) “Civil judgment” means a judgment in a civil action by any court of competent jurisdiction.

(4) “Consolidated list” means a list compiled and maintained by the department and containing the names of contractors that have been debarred or suspended under this chapter or that have been declared ineligible under statute, rule, order or legal authority other than this chapter.

(5) “Contractor” means any individual or any legal entity, including its officers and directors, that submits bids or proposals for, or is awarded or may reasonably be expected to submit bids or proposals for or be awarded a department contract. “Contractor” includes any subcontractor of a contractor that conducts business with the department as an agent or representative of a contractor and any individual or legal entity that conducts business with the department as an agent or representative of a contractor.

(6) “Conviction” means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea and includes a conviction entered upon a plea of no contest.

(7) “Debarment” means action taken by the department under s. Adm 24.05 to exclude a contractor from contracting with the department and from department-approved subcontracting for a specified period. A contractor so excluded is “debarred.”

(8) “Department” means the Wisconsin department of administration.

(9) “Hearing examiner” means a designee of the secretary who is authorized to conduct a fact-finding hearing and to prepare written findings of fact and who may be authorized to issue debarment and suspension decisions pursuant to this chapter.

(10) “Indictment” includes an indictment for a criminal offense, an information or any other filing by a competent authority charging a criminal offense that results in finding probable cause to believe a felony has been committed and in binding the defendant over for trial.

(11) “Ineligible” means excluded from contracting with the department and, if appropriate, from department-approved subcontracting, under statute, rule, order or legal authority other than this chapter.

Note: Examples of reasons for ineligibility are wage-rate violations, civil rights violations and deficient progress.

(12) “Secretary” means the secretary of the department or an authorized representative or designee.

(13) “Suspension” means action taken by the department under s. Adm 24.06 to exclude a contractor from contracting with the department or from department-approved subcontracting temporarily pending the completion of an investigation or of a debarment decision-making proceeding. A contractor so excluded is “suspended.”

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.03 List and records of debarred and suspended contractors.

(1) List.

(a) The department shall compile and maintain a current, consolidated list of debarred, suspended and ineligible contractors.

(b) The department shall use the consolidated list to ensure that it does not solicit offers from, award contracts to, or consent to subcontract with listed contractors, except as otherwise provided in this chapter.

(2) Records. The department shall maintain records relating to each debarred or suspended contractor. Records shall contain all of the following:

(a) Names and addresses of all debarred or suspended contractors.

(b) Cause or causes for each debarment or suspension.

(d) Effective date of the debarment or suspension and, in the case of a debarment, during the term of the contract.

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.04 Treatment of listed contractors.

(1) Effect.

(a) The department may not knowingly solicit bids from, award contracts to, renew an existing contract with, or consent to subcontracts with a debarred or suspended contractor, unless the secretary determines, in writing, that a compelling reason for such dealing with the contractor exists.

(b) The department may not enter a contract with an ineligible contractor and, if applicable, shall exclude ineligible contractors from subcontracts under the conditions and for the period set forth in the applicable statutes, rules, orders or other legal authority. The department may not knowingly solicit bids from, award contracts to, renew an existing contract with, or consent to subcontract with these contractors except in accord with the applicable statutes, rules, orders or other legal authority.

(2) Current contract continuation.

(a) Notwithstanding the listing of a contractor, the department may continue contracts or subcontracts in existence at the time the contractor was debarred or suspended, unless the secretary determines that contract termination is in the public interest.

(b) Contract termination decisions under par. (a), if any, may be made only after review by and consultation with both department contracting personnel and department legal counsel to assure the propriety of the proposed contract termination.

(c) The department may not renew existing contracts or subcontracts with debarred or suspended contractors, unless the secretary determines and states in writing a compelling reason for the contract renewal or extension.

(3) Subcontract restrictions. When a debarred or suspended contractor is proposed as a subcontractor for any subcontract subject to department approval, the department may not give approval unless the secretary determines and states in writing a compelling reason for the approval.

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.05 Debarment.

(1) General.

(a) The department may, in the public interest, debar a contractor for any of the causes contained in sub. (2), using the procedures in sub. (3). The existence of a cause for debarment as specified in sub. (2), however, shall not necessarily require that a contractor be debarred; the seriousness of any contractor’s acts or omissions and any mitigating factors shall be considered in making any debarment decision.

(b) Debarment of a contractor constitutes debarment of all divisions or other organizational elements of the debarred contractor, unless the debarment is explicitly limited to specific divisions or organizational elements.

(c) The department may extend the debarment to include any affiliates of a debarred contractor, if the affiliates are specifically named and are given written notice of the proposed debarment and an opportunity to respond pursuant to sub. (4).

(d) When no suspension is in effect pursuant to s. Adm 24.06 at the time the department contemplates debarment of a contractor, no contracts shall be awarded to, and no subcontracts shall be approved for, the contractor, pending a debarment decision by the department.

(2) Causes for debarment. The secretary may debar a contractor for any one or more of the following causes:

(a) Conviction, civil judgment or admission of:

1. Fraud, collusion or any criminal offense in connection with obtaining, attempting to obtain or performing a public contract or subcontract;

2. Violation of any federal or state antitrust statute relating to the submission of bids or proposals;

3. Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property or obstruction of justice; or

4. Any other offense indicating a lack of business integrity or of business honesty which offense seriously and directly affects the responsibility of the contractor or subcontractor.

(b) Violation of the terms of any government contract or subcontract when that violation is so serious as to justify debarment, including:

1. Willful failure to perform in accordance with a contract; or

2. A history of failure to perform or of unsatisfactory performance of one or more contracts.

(c) Any other cause that is so serious or compelling that it affects the ability of a contractor or subcontractor to meet all contract requirements.

(d) Debarment for any of the above causes listed in pars. (a) to (c) by another state or federal entity.